[Cites 1, Cited by 0]
Bombay High Court
Raoji Harmalkar And Anr vs Sunanda Kashinath Harmalkar on 6 March, 2026
2026:BHC-GOA:388 Raoji Harmalkar and anr.
Versus
Sunanda Kashinath Harmalkar
__________________________________________________
WPCR 87-2025
Vinita
IN THE HIGH COURT OF BOMBAY AT GOA.
CRIMINAL WRIT PETITION NO. 87 OF 2025.
RAOJI HARMALKAR AND ANR. ...PETITIONERS
~ VERSUS ~
SUNANDA KASHINATH HARMALKAR ...RESPONDENT
A PPEARANCES :
for the Petitioners. Mr L. Raghunandan Advocate under
Legal Aid.
for the Respondent. Mr P. Sawaikar and Ms J. Sawaikar,
Advocates.
CORAM : AMIT S. JAMSANDEKAR, J.
Reserved on : 5th March 2026.
Pronounced on : 6th March 2026.
ORDER
1. By the present Petition, the Petitioners have challenged the order
dated 29th April 2025 (the Impugned Order) passed by the
Learned Additional Sessions Judge-3, North Goa, (the Learned
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Raoji Harmalkar and anr.
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Sunanda Kashinath Harmalkar
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WPCR 87-2025
Judge) in Criminal Miscellaneous Application No. 16 of 2025. By
the impugned order, the Learned Judge has dismissed the
Application filed by the Petitioners seeking condonation of the
delay of 323 days in filing an appeal under Section 29 of the
Protection of Women from Domestic Violence Act, 2005 (the Act).
By the Appeal, the Petitioners sought to challenge the interim
maintenance order dated 2nd January 2024, passed by the Judicial
Magistrate First Class- C Court, Bicholim (the Judicial
Magistrate).
2. The 1st Petitioner is the son of the Respondent, and the 2nd
Petitioner is the daughter-in-law of the Respondent. The
Respondent filed proceedings under the Act against the Petitioners,
alleging domestic violence and seeking maintenance from the
Petitioners. The proceedings filed by the Respondent are pending
before the Learned Judicial Magistrate. However, the Learned
Judicial Magistrate was pleased to order interim maintenance of
₹2000 per month from the date of the Application filed by the
Respondent.
3. The interim order passed by the Learned Judicial Magistrate came
into effect on 2nd January 2024. There was no Appeal preferred by
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Raoji Harmalkar and anr.
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Sunanda Kashinath Harmalkar
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WPCR 87-2025
the Petitioners against the order dated 2nd January 2024. The order
passed on 2nd January 2024 was not complied with by the Petitioners
and, therefore, the Respondent was constrained to file an
Application before the Learned Judicial Magistrate, inter alia, seeking
directions against the Petitioners to comply with the order dated 2nd
January 2024.
4. The Application filed by the Respondent was disposed of by the
Learned Magistrate on 26th November 2024. On the date of
disposal of the Respondent's Application, the Petitioners were
required to pay ₹ 1,72,000 to the Respondent towards the arrears of
the interim maintenance. The Petitioners were granted 30 days from
26 November 2024 to pay the arrears to the Respondent. The
Learned Magistrate was further pleased to order that, failing to
comply with the order dated 26th November 2024, a warrant of
attachment be issued to attach the movable properties of the 1st
Petitioner. The Petitioners paid a very small part of the arrears to
the Respondent. However, it is an admitted position that the
Petitioners have not paid a substantial portion of the arrears to the
Respondent.
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WPCR 87-2025
5. Thereafter, on 26th December 2024, the Petitioners filed an
Application before the Learned Judge seeking condonation of the
delay of 323 days in filing an Appeal under section 29 of the Act.
According to the Petitioners, the delay caused in filing the Appeal
was not intentional and was due to bona fide reasons and unavoidable
circumstances. The reasons for the delay, inter alia, include that the
Petitioners were forced to change the Advocate, thereby delaying
the seeking of appropriate legal advice. It is further stated in the
Application that the Petitioners are illiterate and not well-versed in
legal procedure, and therefore, the delay occurred. Apart from these
reasons, the Petitioners have alleged severe financial constraints and
that they did not receive proper legal guidance.
6. After considering the pleadings and hearing the parties, the Learned
Judge was pleased to dismiss the Application filed by the Petitioners
seeking condonation of delay.
7. Mr. L. Raghunandan, Learned Counsel appearing for the
Petitioners, submitted that the impugned order passed by the
Learned Judge is contrary to the well-established principles of law
and therefore is perverse. He further submitted that the impugned
order proceeds on a technical ground, and the Learned Judge ought
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WPCR 87-2025
to have heard the Petitioners on merit. It is the case of the
Petitioners that the Learned Judge did not consider the material on
record and ignored the facts that the Petitioners are illiterate, have
financial constraints and did not receive proper legal advice.
8. Mr. P. Sawaikar, Learned Counsel appearing for the Respondent,
submitted that the impugned order has been passed after
considering all the material on record, and therefore, the Petitioners
have not made out any grounds in the present petition. As far as the
allegations made by the Petitioners that the Petitioners are illiterate
or have financial constraints are concerned, the Respondent
submitted that the Petitioners have made false statements on oath
before the Learned Judge as well as before this Court. Therefore, it
is submitted that no equitable relief should be granted to the
Petitioners. He further submits that the grounds alleged by the
Petitioners that the Petitioners did not receive proper legal advice
are also false and there is nothing on record to justify the grounds
mentioned by the Petitioners to condone the delay.
9. The principles of law for deciding the application seeking
condonation of delay are well settled. In Esha Bhattacharjee V.
Managing Committee of Raghunathput Nafar Academy &
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Ors., (2013) 12 SCC 649, the Hon'ble Supreme Court, after
considering previous judgments, once again detailed the guidelines,
which read as follows:
21. From the aforesaid authorities the principles that can
broadly be culled out are:
21.1. (i) There should be a liberal, pragmatic,
justice-oriented, non-pedantic approach while
dealing with an application for condonation of
delay, for the courts are not supposed to
legalise injustice but are obliged to remove
injustice.
21.2. (ii) The terms "sufficient cause" should be
understood in their proper spirit, philosophy
and purpose regard being had to the fact that these terms
are basically elastic and are to be applied in proper perspective
to the obtaining fact-situation.
21.3. (iii) Substantial justice being paramount and
pivotal the technical considerations should not
be given undue and uncalled for emphasis.
21.4. (iv) No presumption can be attached to deliberate
causation of delay but, gross negligence on the part of the
counsel or litigant is to be taken note of.
21.5. (v) Lack of bona fides imputable to a party
seeking condonation of delay is a significant
and relevant fact.
21.6. (vi) It is to be kept in mind that adherence to strict
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proof should not affect public justice and cause public
mischief because the courts are required to be vigilant so that
in the ultimate eventuate there is no real failure of justice.
21.7. (vii) The concept of liberal approach has to
encapsulate the conception of reasonableness and it cannot be
allowed a totally unfettered free play.
21.8. (viii) There is a distinction between
inordinate delay and a delay of short duration
or few days, for to the former doctrine of
prejudice is attracted whereas to the latter it
may not be attracted. That apart, the first one
warrants strict approach whereas the second calls for a liberal
delineation.
21.9. (ix) The conduct, behaviour and attitude
of a party relating to its inaction or negligence
are relevant factors to be taken into
consideration. It is so as the fundamental
principle is that the courts are required to
weigh the scale of balance of justice in respect
of both parties and the said principle cannot be
given a total go by in the name of liberal
approach.
21.10. (x) If the explanation offered is concocted
or the grounds urged in the application are
fanciful, the courts should be vigilant not to expose the
other side unnecessarily to face such a litigation.
21.11. (xi) It is to be borne in mind that no one gets away
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with fraud, misrepresentation or interpolation by taking
recourse to the technicalities of law of limitation.
21.12. (xii) The entire gamut of facts are to be carefully
scrutinised and the approach should be based on the
paradigm of judicial discretion which is founded on objective
reasoning and not on individual perception.
21.13. (xiii) The State or a public body or an entity
representing a collective cause should be given some acceptable
latitude.
22. To the aforesaid principles we may add some more
guidelines taking note of the present day scenario. They are:
22.1. (a) An application for condonation of delay should be
drafted with careful concern and not in a haphazard manner
harbouring the notion that the courts are required to condone
delay on the bedrock of the principle that adjudication of a
lis on merits is seminal to justice dispensation system.
22.2. (b) An application for condonation of delay should
not be dealt with in a routine manner on the base of
individual philosophy which is basically subjective.
22.3. (c) Though no precise formula can be laid down regard
being had to the concept of judicial discretion, yet a conscious
effort for achieving consistency and collegiality of the
adjudicatory system should be made as that is the ultimate
institutional motto.
22.4. (d) The increasing tendency to perceive delay as a non-
serious matter and, hence, lackadaisical propensity can be
exhibited in a nonchalant manner requires to be curbed, of
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WPCR 87-2025
course, within legal parameters.
(emphasis supplied)
10. I am guided by these principles. It is a settled position of law that
when substantial justice and technical considerations are pitted
against each other, the cause of substantial justice deserves to be
preferred. Though the condonation of delay cannot be sought as a
matter of right, the Court cannot be hyper technical or mechanical
in deciding the applications for condonation of delay. Such
applications will have to be decided on the basis of the facts and
circumstances of each case. While deciding the application, a
liberal, justifiable and equitable approach ought to be adopted.
However, there should be grounds that establish sufficient cause, a
cause that is reasonable. While exercising discretion, equity must be
balanced.
11. In the background of the facts of the present case, grounds
mentioned in the Petition, submissions made by the Learned
Counsels and the above-mentioned guidelines laid down by the
Hon'ble Supreme Court, I perused the impugned order.
12. First of all, I seriously doubt the bona fides of the Petitioners because
the Petitioners have challenged the order of interim maintenance
only after the Learned Magistrate passed an order on the
Application of the Respondent to pay the entire arrears to the
Respondent. Until that order, the Petitioners did not abide by the
order passed by the Learned Judicial Magistrate, this itself shows a
lack of bona fides. Further, the ground that the Petitioners are
illiterate are false on the face. The educational qualification of the
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WPCR 87-2025
1st Petitioner, as stated by his mother in the affidavit in reply, is not
denied by the Petitioners. If the Application is based on false
statements, then the litigant does not deserve any equitable relief.
In the present case, the Petitioners have not only made a false
statement in the Application before the Learned Judge that the
Petitioners are illiterate, but have also reiterated the same ground in
the present Petition.
13. The Learned Judge has rightly held that there is no supporting
material to support any of the grounds alleged by the Petitioners in
the Application seeking condonation of delay. The Learned Judge
has considered all the grounds of the Petitioners, including the
ground that the 1st Petitioner was not well.
14. All these factors show that the Application for condonation of
delay was filed by the Petitioners in a very casual manner. Such
applications cannot be filed by adopting such a casual approach.
The Applicant ought to show bona fides as well as sufficient grounds
in support of the Application. In the present case, the Learned
Judge has rightly rejected the Petitioners Application because there
is no sufficient ground established by the Petitioners in support of
their application.
15. In any case, there is not only a mere delay in making the
Application. The delay is inordinate. Particularly, when the
Petitioners are challenging the interim order.
16. The Respondent, who is the mother of the 1st Petitioner, is 68 years
old and therefore the interim maintenance of ₹2000 per month
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WPCR 87-2025
granted by the Judicial Magistrate is equitable in the facts and
circumstances of the present case. The Petitioners have not abided
by the interim order, and even as of this date, there are substantial
arrears to be paid by the Petitioners to the Respondent. It would
not be equitable to allow the Petitioners to challenge the order of
interim maintenance after such a long period.
17. Therefore, I reject the submissions made on behalf of the
Petitioners that the Learned Judge did not consider material on
record. The Learned Judge has considered each and every ground
alleged by the Petitioners and has assigned reasons for the findings.
Therefore, I do not agree with the submissions made on behalf of
the Petitioners that the impugned order is perverse, arbitrary or
based on technicalities. Mere allegations of perversity are not
enough. The Petitioners are bound to establish perversity on the
face of the record.
18. There is no merit in the present petition. Consequently, the
petition is dismissed.
19. However, there shall be no order as to cost.
[AMIT S. JAMSANDEKAR, J.]
Signed by: VINITA VIKAS NAIK March 6th 2026
Designation: Private Secretary
Date: 06/03/2026 15:39:39
